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A.  SKETCH 

OP    THE 

CLAIMS  OF  SUNDRY  AMERICAN  CITIZENS 

ON    THE 

GOVERNMENT  OP  THE  UNITED  STATES 
FOR   INDEMNITY, 

R  DEPREDATIONS  COMMITTED  ON  THEIR  PROPERTY  BY  THE    FRENCH 
PRIOR  TO  THE  30th  SEPTEMBER,  1800, 

WHICH  WERE  ACKNOWLEDGED  BY  FRANCE, 


,UNTARILY    SURRENDERED    TO    HKR  BY  THE   UNITED  STATES,    FOR  A  VALUABLE    NATIONAL 
CONSIDERATION,    IN     THE     CONVENTION    OF    THAT    DATE. 


BY  JAMES  H.,  C AUSTEN. 


A.  SKETCH 


CLAIMS  OF  SUNDRY  AMERICAN  CITIZENS 


ON    THE 


GOVERNMENT  OF  THE  UNITED  STATES 
FOR   INDEMNITY, 

FOR  DEPREDATIONS  COMMITTED  ON  THEIR  PROPERTY  BY  THE    FRENCH 
PRIOR  TO  THE  SOtli  SEPTEMBER,  1800, 

WHICH  WERE  ACKNOWLEDGED  BY  FRANCE, 


AND 


VOLUNTARILY   SURRENDERED   TO    HER  BY  THE  UNITED  STATES,    FOR  A  VALUABLE    NATIONAL 
CONSIDERATION,    IN    THE    CONVENTION    OP    THAT    DATE. 


BY  JAMES  H.  CAUSTEN. 


"  The  claims  from  which  France  was  released  were  admitted  by  France,  and  the 
release  was  for  a  valuable  consideration  in  a  correspondent  release  of  the  United 
States  from  certain  claims  upon  them." — MR.  MADISON,  Secretary  of  State. 

"  Nor  shall  private  property  be  taken  for  public  use,  without  just  compensation." 
CONSTITUTION  OP  THE  UNITED  STATES. 


WASHINGTON,  D.  C. 

PRINTED  BY  W.  H.  MOORE,  511  ELEVENTH  ST. 
1871. 


- 


FRENCH  SPOLIATIONS  PRIOR  TO  1800. 


The  distinctive  character  of  these  Spoliations  is  set  forth  in  an 
official  report  to  the  President  by  our  Secretary  of  State,  Jan 
uary  18,  1799,  in  citing  an  official  report  of  the  Commissioners 
of  France  at  Saint  Domingo  to  the  Minister  of  Marine,  in  Feb 
ruary,  1797,  and  printed  in  the  Journal  of  the  Executive  .Direc 
tory,  viz  : 

"That,  having  found  no  resource  in  finance,  and  knowing  the  unfriendly  disposition 
of  the  Americans,  and  to  avoid  perishing  in  distress,  they  had  armed  for  cruising  • 
and  that  already,  eighty-seven  cruisers  were  at  sea;  and  that  for  three  months  ore- 
ceding,  the  administration  had  subsisted  and  individuals  been  enriched  with  the 
proceeds  of  those  prizes.  That  the  decree  of  the  2d  of  July  was  not  known  to  them 
until  five  months  afterwards  But  (say  they)  the  shocking  conduct  of  the  Americans, 
and  the  indirect  knowledge  of  the  intentions  of  our  Government,  made  it  our  dutv  to 
order  reprisals,  even  before  we  had  received  the  official  notice  of  the  decree-  thev 
felicitate  themselves  that  American  vessels  were  daily  taken;  and  declare  thai,  they 
had  learnt,  by  divers  persons  from  the  Continent,  that  the  Americans  were  perfidious 
corrupt,  the  friends  of  England,  and  that,  therefore,  their  vessels  no  longer  entered  the 
French  ports,  unless  carried  in  by  force. 

fav£^lT±££n  tbe  "OUndl  °f  FiVeHundred>  Pastoret  -*es  *e  follow- 
"On  reading  this  letter,  we  should  think  that  we  had  been  dreaming;  that  we  had 
been   transported  into  a  savage  country,  where  men,  still  ignorant  of  the  empire  of 
morals  and  of  laws,  commit  crimes  without  shame  and  without  remorse,  and  applaud 
themselves  for  their  robberies,  as  Paulas  Emilius  or  Cato  would  have  praised  them- 
selves  for  an  eminent  service  rendered  to  their  country.     Cruisers  armed  against  a 
friendly  nation  !     Reprisals  when  it  is  we  ourselves  who  attack  !     Reprisals  Ss 
nation    hat  has  not  taken  a  single  vessel  of  ours  !  Riches  acquired  byPthe  confiscatioS 
of  the  ships  of  a  people  to  whom  we  are  united  by  treaties,  and  whom  no  declara    o 
?heTe  few  w'oTds™  ^     ^  ^^  disc°urse  of  the  aSent3  ™y  be  reduced  to 

''Having  nothing  wherewith  to  buy,  I  seize;  I  make  myself  amends  for  the  property 
which  want,  by  the  piracy  which  enriches  me;  and  then  I  slander  those  whom  I 
have  pillaged.  This  is  robbery,  justified  by  selfishness  and  calumny." 

)»-See  Document  102,  No.  293  in  Senate  Document  of  1st 
session  19th  Congress,  being  a  message  from  the  President  to 
the  Senate  of  May  20,  1826,  with  the  report  of  the  Secretary  of 
State,  Mr.  Clay,  and  a  mass  of  documents.  As  I  shall  frequently 
refer  to  it,  it  will  be  as  document  102,  and  number  of  the  partic 
ular  document  therein. 

The  conduct  and  vindictive  spirit  thus  displayed  at  the  port  of 
Saint  Domingo  was,  in  like  manner  of  ferocity  practised,  not 
only  in  all  the  other  French  and  Spanish  Colonies,  but  also 

M92883 


in 


their  respective  seaports  in  Europe  and  elsewhere ;  and  resulted 
in  the  capture  of  more  than  fifteen  hundred  Amerieanvessels — not 
one  of  which  was  legally  captured,  as  the  provisions  of  our  commer 
cial  treaty  with  France  of  1778,  will  clearly  establish. 

On  referring  to  said  treaty,  the  reader  will  be  surprised  at  the 
magnanimity  and  justice  that  dictated  it;  and  that  the  purity  of 
purpose  and  profound  wisdom  it  manifests,  remain  a  monument 
of  excellence,  without  a  rival,  to  this  day.  The  material  stipula 
tions  are — 

"Article  6.  Vessels  and  effects  belonging  to  citizens  of  the  United  States,  to  be 
protected  in  French  ports  and  by  French  war  vessels  whilst  in  company. 

"Article  13.  Vessels  with  contraband  goods — if  the  contraband  goods  be  delivered 
to  the  captor,  'he.  shall  forthwith  discharge  the  ship,  and  not  hinder  her  by  any 
means,  freely  to  prosecute  the  voyage  on  which  she  is  bound.' 

"  Article  17.  Shall  sail  with  their  ships  with  all  security,  no  distinction  being  made 
who  are  the  owners  of  their  lading,  from  one  enemy  port  to  any  other  enemy  port, 
that  free  ships  give  freedom  to  goods  on  board,  even  of  enemy's  goods,  and  so  of 
persons. 

"  Article  27.  In  order  to  avoid  any  disorder  to  merchant  ships  met  at  sea  by  armed 
vessels,  the  latter  '  shall  remain  out  of  cannon  shot,  and  may  enter  her  by  two  or 
three  men  only,  and  when  her  passport  shall  be  exhibited,  she  shall  be  at  liberty  to 
pursue  her  voyage,  so  as  it  shall  not  be  lawful  to  molest  or  search  her  in  any  manner, 
or  to  give  her  chase  or  force  her  to  quit  her  intended  course.' 

"  Article  28.  Cargoes  once  put  on  board,  not  subject  to  further  visitation." — Laws 
V.  States,  vol.  I,  p.  74. 

It  is  thus  clearly  established  that  France  had  no  right  to  cap 
ture  American  vessels,  under  any  circumstances  whatever  ;  and  that 
all  the  fifteen  hundred  vessels  she  did  capture,  as  before  men 
tioned,  were  illegal  under  said  treaty;  and  no  less  illegal  under 
international  law. 

The  reader  would  naturally  inquire,  if  France,  our  acknowledged 
kind  protector,  friend,  and  ally,  had  no  right  to  capture  Ameri 
can  vessels,  why  did  she  do  so  ? 

This  question  must  be  answered,  and  the  proper  time  to  answer 
it  has  arrived.  Although  more  than  forty  reports  of  committees 
of  the  two  Houses  of  Congress  have  been  made — all  in  favor  of 
the  claimants,  not  one  of  them  has  ventured  to  answer  this  ques 
tion  in  full.  The  reader  will  discover  the  motive  for  this  silence 
on  his  further  reading. 

The  early  French  captures,  being  provision  vessels  were  paid 
for,  and  assurance  given  for  future  like  payments,  but  proved 
illusory,  and  were  speedily  followed  by  vindictive  vengeance,  indis 
criminate  capture,  and  instant  condemnation. 

These  early  captures,  in  1793,  were  made  under  absolute  ne 
cessity  ;  the  crops  in  France  having  failed,  a  frightful  civil  war 


raged  in  the  very  bosom  of  France,  and  all  Europe  in  arms  against 
her,  as  punishment  for  beheading  her  King — to  starve  the  people 
of  France  was  the  diabolical  purpose  : — there  was  another  no  less 
prominent  purpose,  viz:  Crowned  heads  against  Republics. 

The  wonderful  coalition  against  France,  made  in  the  heat  of 
active  war  between  England  and  France,  was  formed  in  about 
six  months,  in  which  time  England  had  contracted  twenty-three 
separate  treaties  with  allies ;  the  character  of  which  is  seen  in 
that  one  with  Prussia,  of  July  14,  1793,  the  3d  article  of  which  is 
as  follows  : 

"ARTICLES.  The  high  contracting  parties  having  already  taken  the  resolution  to 
shut  all  their  ports  against  French  ships,  and  not  to  permit  the  exportation,  in  any 
cases,  from  their  said  ports  for  France,  of  any  military  or  naval  stores,  or  corn,  grain, 
salt,  meat,  or  other  provisions,  they  reciprocally  engage  to  continue  these  meas 
ures,  and  promise  to  employ  all  other  means  which  shall  be  in  their  power,  for  injur 
ing  the  commerce  of  France,  and  for  bringing  her  by  such  means  to  just  conditions 
of  peace." 

The  following  instructions  were  given  by  Russia  to  her  Admi 
ral  Tebithe  Goff,  conformably  to  her  treaty  with  England,  of 
March,  1793,  viz  : 

"We  have  ordered  a  fleet  of  twenty-five  sail  of  the  line  and  frigates,  to  be  equipped 
for  four  months  and  under  your  command.  The  principal  duty  of  our  naval  arma 
ment  consists  in  what  follows  : 

"We  are  bound  according  to  our  stipulations  with  His  Majesty,  the  King  of  Great 
Britain,  to  endeavor  to  prevent  these  French,  who  persist  in  their  rebellion,  from  re 
ceiving  any  supplies  of  which  they  may  be  in  need.  The  hostile  measures  employed 
against  them,  are  not  strictly  conformable  to  the  natural  laws  of  war,  when  it  unfor 
tunately  takes  place  between  nations  under  lawful  Government ;  but  as  these  meas 
ures  are  taken  against  those  arrent  villians,  who  have  overturned  all  duties  observed 
towards  God,  the  laws,  and  the  Government,  who  have  even  gone  so  far  as  to  take 
the  life  of  their  own  sovereign — the  means  of  punishing  those  villians  ought  in  justice 
to  be  employed  in  such  a  manner  as  to  accelerate  and  insure  success  in  so  salutary  an 
affair. 

"  We  have  made  representations  to  the  Courts  of  Sweden  and  Denmark,  but  our  just 
demands  have  not  been  satisfactorily  answered  ;  wherefore,  we  have  declared  to  them, 
that  we  cannot  see  with  indifference  provisions  or  stores  sent  to  France,  which  serve 
to  nourish  the  rebels. 

"By  this  you  will  clearly  see  our  will  and  our  intentions, and  we  order  you  to  seize 
all  those  French  vessels  you  may  meet  with,  and  to  send  back  to  their  own  ports  all 
neutral  vessels  bound  for  France." 

The  British  orders  in  council  went  much  further  than  the  above, 
and  authorized  the  capture  of  neutral  vessels  with  provisions 
bound  to  France.  Sweden  and  Denmark  remonstrated  success 
fully  against  said  orders  in  council.  The  United  States  also  re 
monstrated,  but  in  vain  ;  and  more  aggressive  other  like  orders 
soon  followed. 

The  American  vessels  with  provisions  bound  for  and  to  relieve 
starving  France,  to  the  number  of  478  (as  reported  in  Trumbuli's 
Reminiscences,)  were  captured  and  their  cargoes  confiscated  by 


the  British,  the  vessels  being  at  first  released,  but  thereafter  con 
fiscated. 

The  provisions  so  captured  glutted  the  British  market  so  far 
that  a  barrel  of  ilour  would  only  command  eight  dollars  there? 
while  in  a  French  port  it  would  command  forty  dollars. 

In  the  mean  time,  open  war  had  been  declared  by  both  Eng~ 
land  and  France,  each  against  the  other ;  when  the  capture  of 
American  vessels  was  greatly  increased  by  each  of  them.  The 
losses  of  our  merchants  were  very  great,  and  our  Government 
greatly  excited,  not  only  because  of  the  great  loss  of  property,  but 
also  at  the  loss  of  revenue  from  imports  ;  and  above  all,  the  im 
minent  hazard  of  being  drawn  into  the  war  then  in  full  force  be 
tween  England  and  France. 

On  the  22d  of  April,  1793,  President  Washington,  of  his  own 
impulse,  issued  a  proclamation  of  neutrality,  which  states  : 

"Whereas  it  appears  that  a  state  of  war  exists  between  Austria,  Prussia,  Sardinia, 
Great  Britain,  and  the  United  Netherlands,  of  the  one  part,  and  France  on  the  other  ; 
and  the  duty  and  interest  of  the  United  States  require  that  they  should  with  sincerity 
and  good  faith  adopt  and  pursue  a  conduct  friendly  and  impartial  toward  the 
belligerent  Powers."  Doc.  102,  No.  150. 

While  no  man  will  question  the  purity  of  motive  that  dictated 
this  proclamation,  no  man  can  with  truth  deny  that  it  was  the 
starting  point  of  all  the  difficulties  we  had  with  France  that  fol 
lowed  in  its  train.  Its  first  effect  in  our  own  country  was,  to 
divide  our  people  into  two  great  political  parties,  perhaps  of  equal 
numbers  and  activity,  which  disturbed  our  councils  for  half  a 
century,  and  is  not  extinguished  to  this  day.  To  judge  of  its 
true  character,  the  reader  should  bear  in  mind  that  it  was  made 
during  a  mighty  war,  in  which  all  the  numerous  parties  to  it  were 
our  friends,  except  and  against  our  ally  France,  then  in  a  starving 
condition.  The  said  proclamation  directs  "  a  conduct  friendly 
and  impartial  toward  the  belligerent  powers;"  but  not  a  saving 
word  in  favor  of  the  exclusive  rights  due  to  our  ally  France  by 
our  treaty  with  her. 

How  far  the  conduct  just  prescribed  conflicts  with  our  treaties 
with  France,  will  appear  on  citing  their  provisions.  First,  the 
treaty  of  alliance  of  1778  : 

u  ARTICLE  I.  In  case  of  war  between  France  and  Great  Britain,  the  cause  to  be  com 
mon. 

"ARTICLE  II.  The  two  parties  guarantee  mutually  from  the  present  time,  andforever, 
against  all  other  powers,  to  wit,  the  United  States  to  His  most  Christain  Majesty,  the 
present  possessions  of  the  Crown  of  France  in  America,  as  well  as  those  which  it  may 
acquire  by  the  future  treaty  of  peace."  Laws  U.  States,  Vol  1,  p.  05. 


The  French  Islands  were  captured  by  the  English  without  our 
resistance  or  even  remonstrance,  but  directly  the  contrary;  we 
permitted  the  English  to  obtain  in  our  ports  military  supplies,  in 
cluding  our  vessels  to  transport  them  to  the  Islands  where  they 
were  successfully  employed  in  the  capture;  of  this  France  com 
plained  bitterly. 

Our  guarantee  of  these  Islands  being  forever  would  probably 
imply  an  obligation  to  redeem  them  at  whatever  cost,  and  then 
resume  the  guarantee. 

On  many  occasions  the  British  Minister  complained  of  our 
construction  or  application  of  our  treaties  with  France;  which 
induced  Mr.  Jefferson  to  address  a  letter  to  Mr.  Madison,  dated 
April  3,  1794,  in  which  is  the  following: 

*  *  "  As  to  the  guarantee  of  the  French  Islands,  whatever  doubts  may  be 
entertained  of  the  moment  at  which  we  ought  to  interpose,  yet  I  have  no  doubt  that 
we  ought  to  interpose  at  a  proper  time,  and  declare  both  to  England  and  France,  that 
these  Islands  are  to  rest  with  France,  and  that  we  will  make  a  common  cause  with 
the  latter  for  that  object."  Jefferson's  Works,  Vol  3,  p.  303. 

On  the  18th  Septemper,  1793,  Mr.  Genet,  the  French  Minister, 
complained  to  our  Secretary  of  State,  as  follows : 

"  That  the  Secretary  of  War,  to  whom  I  communicated  the  wish  of  our  Government  of 
the  Windward  Islands,  to  receive  promptly  some  fire  arms  and  some  cannon,  which 
might  put  into  a  state  of  defence  possessions  guaranteed  by  the  United  States,  had 
the  front  to  answer  me,  with  an  ironical  carelessness,  that  the  principles  established 
by  the  President  did  not  permit  him  to  lend  us  so  much  as  a  pistol." 

The  President's  message  to  Congress  of  Feb'y  4,  1791,  states 
that  authority  had  been  given  to  hold  informally  conferences  with 
the  British  Ministers,  to  learn  their  disposition  as  to  the  entering 
into  a  commercial  treaty  with  the  United  States.  Mr.  Morris  had 
charge  of  this  duty,  and  in  his  letter  to  the  President,  dated  Lon 
don,  Sept.  18,  1790,  after  detailing  much  conversation  with  His 
Majesty's  principal  Secretary  of  State,  he  adds : 

"  I  proceeded  therefore  a  little  further  and  prayed  him  to  consider  that,  ia  a  war 
between  Great  Britain  and  the  House  of  Bourbon  (a  thing  which  must  happen  at 
some  time)  we  can  give  the  West  India  Islands  to  whom  we  please,  without  engaging  m  tkc 
war  ourselves  ;  and  our  conduct  must  be  governed  by  our  interest.  He  acknowledged  that 
this  was  naturally  to  be  expected  ;  and  it  seemed  from  his  manner  that  the  same  thing 
had  been  represented  before,  but  not  in  such  strong  colors."  Waite's  American  State 
Papers,  vol.  10,  p.  97.  (Confidential.) 

On  the  6th  of  May,  1794,  Mr.  John  Jay,  while  Secretary  of  State, 
had  been  appointed  Minister  Extraordinary  to  Great  Britain — Ms 
instructions  were  very  extended  and  minute  and  contained  the 

following : 

"  Provisions  never  to  be  contraband,  except  in  the  strongest  possible  ease,  as  the 
blockade  of  a  port,  or  if  attainable,  by  abolishing;  contraband  altogether. 


8 

"  You  may  discuss  the  sale  of  prizes  in  our  ports  while  we  are  neutral;  and  this,  perhaps, 
may  be  added  to  the  considerations  which  we  have  to  give,  besides  those  of  reciprocity — Doc. 
102,  No.  63." 

Before,  while  he  was  negotiating  a  treaty,  and  after  it  was  con 
cluded,  the  British  orders  iii  council  to  seize  onr  provision  vessels 
bound  to  starving  France,  were  in  full  operation.  The  treaty 
he  made,  granted  the  right  to  so  capture  on  payment  of  ten  per 
cent,  advance  on  the  invoice  cost  of  the  cargoes,  but  this  advance 
was  soon  overruled  by  other  orders  in  council,  which  directed  the 
capture  and  confiscation. 

This  treaty  contained  29  articles,  most  of  which  were  unsatis 
factory  to  the  United  States,  but,  after  several  modifications  by 
negotiation,  was  eventually  ratified  by  an  extreme  close  vote  in 
each  House  of  Congress.  Two  only  of  its  articles  will  be  here  re 
ferred  to,  viz  : 

"  ARTICLE  18.  Legalizes  the  capture  of  provision  vessels  on  certain  conditions — 
which  were  not  complied  with. 

"ARTICLE  25.  Prizes  made  by  either  party  shall  be  free  to  enter  the  ports  of  the 
other. 

"  No  shelter  or  refuge  shall  be  given  in  their  ports  to  such  as  have  made  a  prize 
upon  the  subjects  or  citizens  of  either  of  the  said  parties." 

With  regard  to  said  18th  article,  the  following  will  suffice,  viz : 
Our  Secretary  of  State,  Mr.  Randolph,  on  the  14th  July,  1795,  in 
his  letter  to  Mr.  Morris,  our  Minister  at  Paris,  says  : 

"The  treaty  of  Mr.  Jay's  is  not  yet  ratified  by  the  President,  nor  will  it  be  ratified,  I 
believe,  until  it  returns  from  England,  if  then.  *  *  *  The  late  British  order  for 
seizing  provisions  is  a  weighty  obstacle  to  a  ratification.  I  do  not  suppose  that  such  an 
attempt  to  starve  France  will  be  countenanced."  Doc.  102,  No.  61. 

And,  in  the  instructions  to  our  Minister  to  England,  Mr.  John 
Q.  Adams,  who  was  charged  with  the  exchange  of  the  ratification 
of  said  treaty,  is  the  following: 

"  But,  if  after  every  precedent  effort,  you  find  that  it  (the  British  orders  to  capture 
provision  vessels)  cannot  be  removed,  its  continuance  is  not  to  be  an  obstacle  to 
the  exchange  of  ratifications." — Doc.  102,  No.  206. 

The  25th  article  of  the  treaty  need  not  be  here  remarked  on, 
since  it  is  so  clear  and  complete  a  violation  of  the  letter  and  spirit 
of  our  treaty  with  France,  that  no  man  can  mistake  it.  Our  treaty 
with  France  gave  her  the  exclusive  use  of  our  ports,  to  the  exclu 
sion  of  all  other  powers — and  here,  while  our  ally  France  and 
England  are  engaged  in  vindictive  war  upon  each  other,  we  de 
liberately  take  from  France  her  exclusive  right,  and  without  con 
sideration,  bestow  it  on  her  enemy,  during  war.  England  had 
already  captured  all  the  French  Islands  we  had  guarantied,  with- 


9 

out  aid  or  remonstrance  on  our  part;  and  now,  by  this  treaty  with 
her  enemy,  France  was  deprived  of  all  refuge  for  her  war  vessels 
and  their  prizes  in  this  hemisphere. 

Mr.  Hammond,  the  British  Minister,  had  made  frequent  com 
plaint  against  the  use  of  our  ports  by  the  French  vessels  of  war ; 
to  which  Mr.  Jefferson  responded  on  the  9th  September,  1793, 
as  follows: 

"  And  though  the  admission  of  the  prizes  and  privateers  of  France  is  exclusive,  yet 
it  is  the  effect  of  treaty  made  a  long  ago  for  valuable  considerations,  not  with  a  view 
to  present  circumstances,  nor  against  any  nation  in  particular,  but  all  in  general; 
and  may,  therefore,  be  faithfully  observed  without  offence  to  any  ;  and  we  mean  faith 
fully  to  observe  it." — Doc.  102,  No.  133. 

Mr.  Jefferson  here  manifested  the  true  spirit  in  maintaining 
our  treaty  with  France,  but,  how  far  he  was  entitled  to  commen 
dation  for  so  doing,  will  be  seen  in  the  following  letter  from  him 
to  the  same  British  Minister,  of  only  four  days  prior  date,  viz: 
September  5,  1793 : 

"  I  am  honored  with  yours  of  August  30th  ;  mine  of  the  7th  of  same  month  assured 
you  that  measures  were  taking  for  excluding  from  all  furthey  asylum  in  our  ports 
[French]  vessels  armed  in  them  to  cruise  on  nations  with  which  we  were  at  peace,  and 
for  the  restoration  of  the  prizes  the  Lovely  Lass,  Prince  William  Henry,  and  the  Jane 
of  Dublin  ;  and  that  should  the  measures  for  restoration  fail  in  their  effect,  the  Presi 
dent  considered  ir  as  incumbent  on  the  United  States  to  make  compensation  for  the 
vessels."— Doc.  102,  No.  131. 

*  *  -x-  *  * 

The  exclusion  here  proffered  is  of  French  armed  vessels  and 
their  prizes,  which  France  had  freely  enjoyed  with  our  entire 
assent,  and  which  France  asserted  was  her  right  by  treaty. 

The  British  Government  regarded  Mr.  Jefferson's  letter  last 
cited,  of  so  great  importance  as  to  cause  it  to  be  incorporated  into 
and  made  part  of  Mr.  Jay's  treaty  ;  in  virtue  of  which,  she  claimed 
and  received  a  large  indemnity  from  the  United  States.  The 
French  Government  complained  of  said  letter  as  being  unfriendly 
to  it. 

Under  Mr.  Jay's  treaty  the  British  Government  claimed  and 
received,  at  the  cost  of  the  United  States,  a  further  indemnity  of 
600,000  poundlPiH&tling,  about  three  millions  of  dollars,  for  im 
peded  debts  due  to  her  subjects  during  our  Revolutionary  war. 

And  under  the  same  treaty  awards  were  made  and  paid  by  the 
British  Government  to  the  merchants  of  the  United  States,  as 
indemnity  for  our  captured  vessels,  to  the  amount  of  $11,650,000, 
as  stated  in  the  report  of  Mr.  Trumbull,  one  of  the  American 
Commissioners,  in  his  volume  of  Reminiscences,  page  238. 

There  were  strange  things  done  by  our  Government  in  those 


10 

days ;  but  we  must  not  overlook  our  then  infancy  and  inexperi 
ence,  while  threatened  on  every  side  with  surrounding  difficulties, 
which  led  Mr.  Jefferson,  as  is  understood,  to  withdraw  from  the 
then  Administration. 

Soon  after  Mr.  Jay's  treaty  was  ratified  our  Secretary  of  State, 
Mr.  Pickering,  in  his  report  to  the  President  of  July  15,  1798, 
says  : 

"  Mr.  Adet  [the  French  Minister]  asks  whether  the  President  has  caused  orders  to 
be  given  to  prevent  the  sale  of  prizes  conducted  into  the  ports  of  the  United  States, 
by  vessels  of  the  Republic,  or  privateers  armed  under  its  authority.  On  this,  I  have 
the  honor  to  inform  you,  that  the  26th  article  of  the  British  treaty,  Mr.  Jay's,  having 
explicity  forbidden  the  arming  of  [French]  privateers,  and  the  selling  of  their  prizes 
in  the  ports  of  the  United  States,  the  Secretary  of  the  Treasury  prepared,  as  a  matter 
of  course,  circular  letters  to  the  collector  to  conform  to  the  restriction  contained  in 
that  [article  of  the  British  treaty]  as  the  law  of  the  land.  This  was  the  more  neces 
sary,  as  formerly  the  collectors  were  instructed  to  admit  to  an  entry  and  sale  the  prizes 
brought  into  our  ports"  [by  the  French.] 

The  publication  of  Mr.  Jay's  treaty,  in  1796,  produced  great 
excitement  throughout  our  whole  country.  Congress  by  resolu 
tion  called  on  the  President  for  a  copy  of  the  instructions  to  Mr. 
Jay,  which  was  voted  after  a  long  and  heated  discussion.  The 
President  refused  to  furnish  a  copy,  most  happily,  as  its  publicity 
would,  most  probably,  have  led  France  to  instantly  declare  war 
against  us.  The  instructions  contained,  as  before  mentioned,  the 
proffer  to  England  of  the  exclusive  use  of  our  ports,  notwith 
standing  our  previous  pledge  of  them  to  France. 

On  the  12th  November,  1794,  our  Secretary  of  State,  Mr.  Ran 
dolph,  thus  wrote  to  Mr.  Jay : 

"  If  the  prohition  to  sell  French  prizes  should  commence  sooner  than  the  termina 
tion  of  the  war  [then  existing  between  England  and  France]  we  shall  be  placed  in 
very  great  difficulties  ;  and  I  am  pleased  to  observe  that  you  are  impressed  with  the 
force  of  this  idea." — Doc.  102,  No.  64. 

The  promulgation  of  Mr.  Jay's  treaty,  in  1796,  opened  instantly 
the  vials  of  wrath  and  vengeance  of  France  against  the  United 
States.  She  called  us  perfidious,  and  accused  us  of  having  joined 
the  great  coalition  to  starve  the  people  of  France,  and,  in  conse 
quence  thereof,  she  ordered  the  ocean  to  be  «••£»  of  American 
vessels  by  privateers  commissioned  for  that  object,  and  loaned 
her  public  vessels  to  privateersrnen  for  a  share  of  the  booty  they 
could  thus  acquire.  As  before  mentioned,  more  than  fifteen  hun 
dred  American  vessels  were  thus  captured,  being  the  identical 
vessels  for  which  the  bill  for  the  relief  of  their  owners  is  now 
pending  before  Congress,  the  United  States  having  for  their  own 
benefit  bartered  the  aggregate  claims  of  their  owners  to  indem- 


11 

nity,  to  France,  for  a  release  of  our  Government  from  the  onerous 
stipulations  of  the  treaties  with  France,  of  1778,  and  the  incurred 
liabilities  under  them.  This  release  of  the  United  States  cannot 
be  computed  in  money,  because  it  was  inestimable;  but  it  was  at 
least  equivalent  in  value  to  the  sum  of  the  captured  vessels,  and 
was  so  considered  in  the  bargain  made,  which  was  of  our  own 
seeking,  and  therefore  unquestionable.  But  the  owners  of  said 
vessels  never  received  a  dollar  for  their  vessels  to  this  day. 

At  an  early  period,  August  27,  1793,  our  Secretary  of  State, 
Mr.  Jefferson,  published  the  following  circular  letter  to  the  mer 
chants  of  the  United  States  : 

To Gentlemen  : 

"  Complaint  having  been  made  to  the  Government  of  the  United  States,  of  some  in 
stances  of  unjustifiable  vexation  and  spoliation  on  our  merchant  vessels  by  the  pri 
vateers  of  the  Powers  at  war,  [England  and  France,]  and  it  being  possible  that  other 
instances  may  have  happened  of  which  no  information  has  been  given  to  the  Govern 
ment;  I  have  it  in  charge  from  the  President,  to  assure  the  merchants  of  the  United 
States  concerned  in  foreign  commerce  or  navigation,  that  due  attention  will  be  paid 
to  any  injuries  they  may  suffer  on  the  high  seas,  or  in  foreign  countries,  contrary  to 
the  law  of  nations,  or  to  existing  treaties ;  and  that,  on  their  forwarding  hither  well- 
authenticated  evidence  of  the  same,  proper  proceedings  will  be  adopted  for  their  re 
lief."— Doc.  102,  No.  130. 

Our  Government  thus  volunteered  its  agency  in  behalf  of  the 
claimants,  and  took  in  charge  the  evidence  of  their  losses.  The 
evidence  was  by  it  forwarded  to  France  for  collection ;  but,  instead 
of  collection  for  the  claimants,  was  bartered  to  France  in  payment 
of  its  own  debt ;  and  the  evidence  of  the  barter  was  placed  in  the 
secret  files  of  the  State  Department,  and  was  so  concealed  for 
more  than  a  quarter  of  a  century.  The  evidence  of  loss  so  placed 
in  the  charge  of  our  Government  has  not  been  restored  to  the 
claimants,  nor  even  a  record  kept  of  that  sent  by  it  to  France ; 
nor  has  our  Government  ever  accounted  to  the  claimants  for  the 
agency  so  conferred  on  it. 

It  will  be  observed  that  this  Government  agency  embraced 
claims  against  both  England  and  France  ;  they  were  of  about 
equal  amount;  and  those  claims  sent  to  England  produced  to  the 
claimants,  as  before  noted,  the  sum  of  $11,650,000 ;  while  those 
sent  to  France  produced  nothing,  as  the  whole  was  absorbed  in 
payment,  by  barter,  of  the  public  debt  to  France. 

The  violent  depredations  of  France  were  continued  with  in 
creased  violence  and  beyond  endurance,  and  the  United  States 
prepared  for  defence,  if  not  for  open  war,  which  appeared  almost 
inevitable,  but  did  not  take  place. 


12 

Our  Government  resolved  on  negotiation,  and  accordingly,  on 
the  15th  July,  1797,  appointed  Charles  0.  Pinckney,  John  Mar 
shall,  and  Elbridge  Gerry,  as  envoys  extraordinary  to  the  French 
Republic.  Their  instructions  were  voluminous,  and  contained 
the  following : 

"Finally,  the  great  object  of  the  Government  being  to  do  justice  to  France  and  her 
citizens,  if  in  anything  we  have  injured  them  ;  to  obtain  justice  for  the  multiplied 
injuries  they  have  committed  against  us  ;  and  to  preserve  peace ;  your  style  and  man 
ner  of  proceeding  will  be  such  as  shall  most  directly  tend  to  secure  these  objects." — 
Doc.  102,  No.  307. 

France  was  not  in  a  temper  for  reconciliation  :  and  the  mission 
failed  to  complete  anything  ;  they  did  obtain,  however,  during 
their  negotiation,  the  following  proposition,  dated  November  8, 
1797,  viz  : 

"There  shall  be  named  a  commission  of  five  members,  agreeably  to  a  form  to  be 
established,  for  the  purpose  of  deciding  upon  the  reclamations  of  the  Americans  rela 
tive  to  the  prizes  made  on  them  by  the  French  privateers. 

"  The  American  Envoys  will  engage  that  their  Government  shall  pay  the  indemni 
fications,  or  the  amount  of  the  sums  already  decreed  to  American  creditors  of  the 
French  Republic,  and  those  which  shall  be  adjudged  to  the  claimants  by  the  Commis 
sioners. 

"  This  payment  shall  be  made  under  the  name  of  an  advance  to  the  French  Repub 
lic,  who  will  repay  it  in  a  time  and  manner  to  be  agreed  on." — Doc.  102,  No.  310. 

France  had  declared  her  finance  exhausted  by  war,  and  there 
fore  could  not  pay  us  promptly  for  the  spoliations  ;  hence,  she 
offered  the  above  proposition.  But  the  American  Envoys  refused 
to  sanction  it,  as  being  beyond  their  instructions,  but,  particu 
larly,  because  England  would  regard  it  as  a  covert  aid  to  France 
during  the  existing  war. — Doc.  102,  No.  319. 

Mr.  Jefferson  was  much  dissatisfied  with  the  condition  of  our 
public  affairs  with  England  and  France.  In  his  letter  of  June 
17,  1797,  to  Colonel  Burr,  he  says: 

"We  have  received  a  report  that  the  French  Directory  has  proposed  a  declaration 
of  war  against  the  United  States  to  the  Council  of  Ancients,  who  have  rejected  it. 
Thus  we  see  two  nations  who  love  one  another  affectionately,  brought,  by  the  ill 
temper  of  their  Executive  Administrations,  to  the  very  brink  of  a  necessity  to  imbrue 
their  hands  in  the  blood  of  each  other." — Jefferson's  Works,  vol.  3,  p.  358. 

And  on  the  20th  June,  1797,  Mr.  Jefferson  wrote  to  Elbridge 
Gerry,  who  was  just  confirmed  as  one  of  the  Envoys  to  Erance, 
viz : 

"  It  was  with  infinite  joy  to  me,  that  you  were  yesterday  announced  to  the  Senate 
as  Envoy  Extraordinary  jointly  with  General  Pinckney  and  Mr.  Marshall,  to  the 
French  Republic.  It  gives  me  certain  assurances  that  there  would  be  a  preponder 
ance  in  the  mission  sincerely  disposed  to  be  at  peace  with  the  French  Government 
and  nation.  Peace  is  undoubtedly  at  present  the  first  object  of  our  nation.  Interest 
and  honor  are  also  national  considerations.  But  interest,  duly  weighed,  is  in  favor 
of  peace  even  at  the  expense  of  spoliations  past  and  future  ;  and  honor  cannot  now 
be  an  object.  The  insults  and  injuries  committed  on  us  by  both  the  belligerents  par- 


13 

ties,  from  the  beginning  of  1793  to  this  day,  and  still  continuing,  cannot  be  wiped  off 
by  engaging  in  war  with  one  of  them.  Our  countrymen  have  divided  themselves  by 
such  strong  affections  to  tho  French  and  the  English,  that  nothing  will  secure  us  in 
ternally  but  a  divorce  from  both  nations." — Jefferson's  Works,  vol.  3,  p.  359. 

That  mission  proved  a  failure. 

On  the  22d  October,  1799,  a  second  mission  to  France  was 
appointed,  viz  :  Oliver  Ellsworth,  William  K.  Davie,  and  William 
Vans  Murray,  whose  instructions  contained,  viz  : 

"And  you  know  that,  instead  of  relief,  instead  of  justice,  instead  of  indemnity  for 
past  wrongs,  our  very  moderate  demands  have  been  immediately  followed  by  new  ag 
gressions  and  more  extended  depredations;  while  our  Ministers,  seeking  redress  and 
reconciliation,  have  been  refused  a  reception,  treated  with  indignities,  and  finally 
driven  from  its  territories. 

"This  conduct  of  the  French  Republic  would  well  have  justified  an  immediate  de 
claration  of  war  on  the  part  of  the  United  States  ;  but  desirous  of  maintaining  peace, 
and  still  willing  to  leave  open  the  door  of  reconciliation  with  France,  the  United 
States  contented  themselves  with  preparations  for  defence,  and  measures  calculated 
to  protect  their  commerce. 

"  The  following  points  are  to  be  considered  as  ultimata.  First,  that  an  article  be 
inserted  for  establishing  a  Board  with  suitable  powers,  to  hear  and  determine  the 
claims  of  our  citizens  for  the  causes  hereinbefore  expressed,  and  binding  on  France 
to  pay  or  secure  payment  of  the  sums  which  shall  be  awarded. 

First,  at  the  opening  of  the  negotiation,  you  will  inform  the  French  Ministers,  that 
the  United  States  expect  from  France,  as  an  indispensable  condition  of  the  treaty,  a 
stipulation  to  make  to  the  citizens  of  the  United  States  full  compensation  for  all  losses 
and  damages  which  they  shall  have  sustained  by  reason  of  irregular  or  illegal  cap 
tures  or  condemnations  of  their  vessels  or  other  property,  under  color  of  authority  or 
commissions  from  the  French  Government  or  its  agents." — Doc.  102,  No.  346. 

The  elaborate  discussions  at  Paris  that  followed  extended  to  the 
80th  of  September,  1800,  during  all  which,  the  only  point  at 
issue  was  with  respect  to  the  national  claim  of  France  as  to  the 
continuous  and  uninterrupted  operation  of  the  treaties  of  1778, 
and  the  liabilities  due  to  France  under  them — the  right  of  our 
citizens  to  indemnity  for  spoliations  on  their  vessels  was  promptly 
and  uniformly  conceded  on  both  sides  throughout  the  entire 
negotiation.  On  the  llth  August,  1800,  the  French  negotiators, 
Messrs.  Joseph  Bonaparte,  Fleurieu,  and  Hoedereur  thus  wrote 
to  our  Envoys: 

"In  the  first  place,  they  will  insist  upon  the  principle  already  laid  down  in  their 
former  note,  viz:  that  the  treaties  which  united  France  with  the  United  States  are 
not  broken;  that  even  war  could  not  have  broken  them  ;  but  that  the  state  of  mis 
understanding,  which  has  existed  for  some  time  between  Franc  e  and  the  United 
States,  by  the  act  of  some  agents,  rather  than  the  will  of  the  respe  ctive  Governments 
has  not  been  a  state  of  war,  at  least  ou  the  side  of  France. 

ulf  the  reflections  presented  on  th's  subject  in  the  note  of  the  French  Ministers,  of 
the  5th  of  the  present  month,  suffice  to  lead  the  Ministers  of  the  United  States  to  the 
acknowledgment  of  the  treaties,  the  first  consequence  which  will  result  from  them, 
and  which  the  Ministers  of  France  will  be  eager  to  recognize  anew,  is,  that  the  par 
ties  on  both  sides  ought  to  be  compensated  for  the  damages  which  have  been  mutu 
ally  caused  by  their  misunderstanding.  Thus,  the  first  proposition  of  the  Ministers  of 
France  is,  to  stipulate  a  full  and  entire  recognition  of  the  treaties,  and  the  reciprocal 
engagement  of  compensation  for  damages  resulting  on  both  sides  from  their  in 
fraction." 


14 

At  the  foot  of  that  communication  the  French  Minister  pre 
sented  a  modified  or  alternative  proposition,  viz : 

"  Either  the  ancient  treaties  with  the  privileges  resulting  from  priority,  and  the 
stipulation  of  reciprocal  indemnities, 

"  Or  a  new  treaty,  assuring  equality  without  indemnity." 

This  modified  proposition  greatly  embarrassed  the  Envoys,  as 
they  were  expressly  forbidden  to  revive  the  old  treaties  in  whole 
or  in  part:  nor  could  they  stipulate  equality  to  France,  since  we 
had  already  given  the  exclusive  right  to  Great  Britain,  which  we 
could  not  recall. 

The  French  Ministers  were  inflexible,  however ;  and  the  En 
voys  offered,  in  vain,  large  sums  of  money  to  release  us  from  cer 
tain  articles  of  the  old  treaties — the  guarantee  of  the  French 
islands,  and  the  use  of  our  ports.  The  French  Ministers  con 
sented  to  accept  often  millions  of  livres  for  the  extinction  of  the 
guaranty,  but  declared  that  no  consideration  whatever  could  lead 
to  release  the  United  States  from  the  use  of  our  ports,  as  such 
would  be  in  effect  a  surrender  of  her  flag  to  Great  Britain. 

In  the  progress  of  the  negotiation  very  many  propositions  on 
either  side  were  discussed,  all  of  which  recognized  and  provided 
for  the  Spoliation  claims ;  but  the  propositions  of  the  French 
Commissioners  uniformly  insisted  that  the  old  treaties  remained 
in  full  force,  and  should  be  so  regarded. 

This  was  a  dead  lock.  The  Envoys  then  proposed  to  insert  in 
the  new  treaty  an  article  that  should  recognize  the  claims  on  both 
sides,  and  refer  their  decision  to  a  future  convenient  time.  This 
proposition  was  accepted  by  the  French  Minister,  and  became 
the  second  article  of  the  new  treaty,  which  was  afterwards  con 
cluded  as  a  Convention — the  second  article  being  as  follows : 

"ART.  2.  The  Ministers  Plenipotentiary  of  the  two  parties  not  being  able  to  agree 
at  present  respecting  the  treaty  of  Alliance  of  6th  February,  1778,  the  treaty  of  Amity 
and  Commerce  of  the  same  date,  and  the  [Consular]  Convention  of  November  14, 
1788;  nor  upon  the  indemnities  mutually  due  or  claimed;  the  parties  will  negotiate 
further  on  these  subjects  at  a  convenient  time ;  and  until  they  may  have  agreed  upon 
those  points,  the  said  treaties  and  convention  shall  have  no  operation,  and  the  rela 
tions  of  the  two  countries  shall  be  as  follows:"  [Here  follows  .articles  to  No.  29.] — 
Laws  U.  S.,  vol.  1,  p.  115. 

That  second  article  when  ratified  by  the  First  Consul,  as  was 
promptly  done,  was  virtually  a  French  National  Bond  pledged 
in  favor  of  the  Spoliation  claims,  and  although  not  specified  as  to 
amount,  may  be  regarded  as  a  liquidated  acknowledged  debt, 
since  the  French  negotiators  had  uniformly  acknowledged  the 
liability  of  France  for  them. 


15 

That  bond  was  placed  in  charge  of  our  Government,  as  trustee 
of  the  claimants,  for  collection.  It  was  indeed  a  long  bond,  but 
that  did  not  lesson  its  validity,  nor  lesson  the  evidence  of  its 
validity,  to  wit  :  the  oft  repeated  admission  of  the  French  negoti 
ators,  which  is  matter  of  permanent  record. 

T  he  United  States,  without  the  assent  or  knowledge  of  the 
claimants,  paid  their  public  debt  to  France  with  said  bond.  Can 
anyone  doubt,  therefore,  as  to  which  of  the  two  Governments  is 
now  responsible  for  the  individual  claims  of  our  citizens  thus 
taken  for  the  public  use  ?  The  thus  taking  and  use  of  the  private 
property  in  said  bond  was,  nevertheless,  an  act  of  profound  wis 
dom.  A  favorable  event  occurred  which  enabled  the  United  States 
to  pay  her  debt  to  France,  and  they  did  so,  by  the  use  of  said  bond, 
at  the  sole  cost  of  the  claimants. 

On  the  convention  being  laid  before  the  Senate  they  struck  out 
the  second  article  without  stating  the  reason  for  so  doing,  and 
sent  it  back  to  Paris  for  confirmation.  There  is  nothing  extant 
to  show  the  motive  for  striking  out  that  article,  but  it  is  self-evi 
dent  that  it  was  to  release  the  United  States,  so  earnestly  and  long 
desired,  from  our  treaty  engagements  with  France,  that  second 
article  being  the  only  ligament  that  held  us  to  them. 

On  the  amended  convention  being  laid  before  the  First  Consul, 
he  expressed  surprise  and  dissatisfaction,  as  the  second  article 
was  inserted  at  the  desire  of  the  American  Envoys,  his  Chief 
Minister,  Tallyrand,  having  reported  to  him,  however,  that  the 
simple  nullification  of  that  article  would  not  only  lose  the  old 
treaties  to  France,  but  would  leave  her  still  liable  for  the  Ameri 
can  Spoliation  claims  under  international  law. 

On  being  so  advised,  the  First  Consul  ratified  the  modified  con 
vention  in  the  following  manner: 

I    "Bonaparte,  First  Consul,  in  the  name  of  the  French  people  *  *  *  approves  the 
above    Convention    in  all    and    each  of  the  articles.     *  *  *  The  Government  of  th 
United  States  having  added  to  its  ratification,  that  the  Convent  on  shall  Te°n  force 

of  thepTl  °K  61gvr  JearS'  "^  haVlng  °miUed  the  Sec°nd  ^ticle,  the  Government 

•tl  ?ti  Fre"cl\?ePl  lbhc  consents  to  accept,  ratify,  and  confirm  the  above  Conventio 
with  the  addition,  importing  that  the  Convention   shall  be   in  fore     for  the  space  of 
eight  years,  and  with  the   retrenchment  of  the  second  article    Prlv  ided  that  by  /A* 


^^^ 


This  conditional  ratification  being  submitted  to  the  Senate  was 
confirmed  as  "fully  ratified;"  and   was  so  returned  to  the  Presi 
dent,  and  by  his  proclamation  was  promulgated  on  the  31st  July 
1801,  as  the  supreme  law  of  the  land;    the  original  convention 


16 

was  confirmed  and  signed  by  John  Adams,  President,  and  John 
Marshall,  Secretary  of  State,  and  the  final  ratification  was  signed 
by  Thomas  Jeflerson,  President,  and  James  Madison,  Secretary 
of  State.— [Laws  of  United  States,  vol.  1,  p.  132-4.] 

If  the  Senate  had  not  ratified  the  condition  of  the  First  Consul 
the  Spoliation  claims  would  have  remained  as  due  from  France, 
and  been  maintained  against  her  by  both  the  old  treaties  and  the 
law  of  nations. 

And  if  the  United  States  could  have  obtained  from  France  a 
simple  release  from  or  nullification  of  the  old  treaties — as  they 
most  earnestly  sought — it  could  only  operate  prospectively  from 
its  date,  and  thus  have  left  the  spoliation  claims  as  still  due  from 
France. 

But  when  the  mutual  claims  were  indissoluble  united,  the  French 
national  claim  on  one  side,  and  the  spoliation  claims  of  our  citi 
zens  on  the  other  side;  and  our  Government,  in  order  to  rid  itself 
of  said  French  national  claim,  surrendered  or  bartered  the  private 
claims  of  our  citizens,  as  a  consideration  therefor,  who  can  doubt 
that  it  is  the  very  case  for  which  the  Constitution  provides,  that 
property  of  individuals  "  shall  not  be  taken  for  the  public  use 
without  just  compensation." 

The  value  of  the  spoliation  claims  was  infinitely  less  than  that 
of  the  old  treaties  ;  nevertheless,  they  were  considered  and  treated 
in  the  bargain  as  of  equal  value  by  the  two  Governments.  This 
barter  was  made  by  the  Senate  (not  by  our  Envoys)  first,  in  strik 
ing  out  the  second  article  of  the  convention,  and  then,  in  accept 
ing  the  First  Consul's  explanatory  condition  thereto.  It  was  the 
Senate  and  President  Jeflerson,  (and  his  Secretary  of  State,  Mr. 
Madison,)  the  treaty-making  power,  that  consummated  the  bar 
gain. 

Mr.  Jefferson,  in  his  letter  of  December  18.  1801,  to  Mr.  R.  E. 
Livingston,  our  Minister  at  Paris,  says: 

"  I  am  authorized  to  say  that  the  President  does  not  regard  the  declaratory  clause 
[of  the  First  Consul]  as  more  than  a  legitimate  inference  from  the  rejection  by  the 
Senate  of  the  second  article,  and  that  he  is  disposed  to  go  on  with  the  measures  due 
under  the  compact  to  the  French  Republic." — Doc.  102,  No.  446. 

And  Mr.  Madison,  Secretary  of  State,  in  his  instructions  to 
Mr.  Charles  Pinckney,  our  Minister  to  Spain,  dated  February  6, 
1804,  says: 

"  The  claims  from  which  Frauce  was  released  [under  the  Convention  of  18CO]  were 
admitted  by  France,  and  the  release  was  for  a  valuable  consideration  in  a  corresponding 


17 

release  of  the  United  States  from  certain  claims  on  them.  The  claims  we  make  on 
Spain  were  never  admitted  by  France,  nor  made  on  France  by  the  United  States; 
they  made,  therefore,  no  part  of  the  bargain  with  her,  [Spain,]  and  could  not  be  in 
cluded  in  the  release."  Doc.  102,  No.  506. 

On  the  26th  May,  1826,  President  John  Q.  Adams  adopted, 
and  suhmitted  to  the  Senate,  a  report  of  the  Secretary  of  State, 
Mr.  Clay — accompanied  with  a  mass  of  documents,  herein  referred 
to  as  document  No.  102 — in  which  Mr.  Clay  says : 

*  *  *  The  French  ratification  being  thus  conditional  was  nevertheless  changed 
against  that  of  the  United  States,  at  Paris,  on  the  same  31st  of  July,  1801.  The 
President  of  the  United  States  considering  it  necessary  again  to  submit  the  Conven 
tion,  in  this  State,  to  the  Senate,  on  the  19th  of  December,  1801,  it  was  resolved  by 
the  Senate  that  they  considered  the  Convention  as  fully  ratified,  and  returned  it  to 
the  President  for  the  usual  promulgation.  It  was  accordingly  promulgated,  and 
thereafter  regarded  as  a  valid  and  binding  compact.  The  two  contracting  parties 
thus  agreed  by  the  retrenchment  of  the  second  article,  mutually  to  renounce  the 
respective  pretensions  which  were  the  object  of  that  article.  The  pretensions  of  the 
United  States,  to  which  allusion  is  thus  made,  arose  out  of  the  spoliations,  under 
color  of  French  authority,  in  contravention  to  law  and  existing  treaties.  Those  of 
France  sprung  from  the  treaty  of  Alliance  of  the  6th  February,  1778,  the  treaty  of 
Amity  and  Commerce  of  the  same  date,  and  the  [Consular]  Convention  of  November 
14,  1788.  Whatever  obligations  or  indemnities  from  those  sources  either  party  had 
a  right  to  demand,  were  respectively  waived  and  abandoned, .and  the  consideration 
which  induced  one  party  to  renounce  his  pretensions  was  that  of  the  renunciation 
by  the  other  party  of  his  pretensions.  What  was  the  value  ot  the  obligations  and 
indemnities  so  reciprocally  renounced,  can  only  be  a  matter  of  speculation.  The 
amount  of  the  indemnities  due  to  citizens  of  the  United  States  was  very  large,  and  on 
the  other  hand,  the  obligation  was  great  (to  specify  no  other  French  pretensions) 
under  which  the  United  States  were  placed  in  the  1 1th  article  of  the  treaty  of  Alliance 
of  the  6th  of  February,  1778,  by  which  they  were  bound  forever  to  guarantee  from 
that  time  the  then  possessions  of  the  Crown  of  France  in  America,  as  well  as  those 
which  it  might  acquire  by  the  future  treaty  of  peace  with  Great  Britain  ;  all  these 
possessions  having  been-,  it  is  believed  were  conquered  at,  or  not  long  after,  the 
exchange  of  ratifications  of  the  Convention  of  September,  1800,  by  the  arms  of  Great 
Britain,  from  France. 

The  fifth  article  of  the  amendments  to  the  Constitution  provide  "  Nor  shall  private 
property  be  taken  for  public  use  without  just  compensation."  If  the  indemnities  to 
which  citizens  of  the  United  States  were  entitled  for  French  spoliations,  prior  to  the 
30th  September,  1800,  have  been  appropriated  to  absolve  the  United  States  from  the 
fulfilment  of  an  obligation  which  they  had  contracted,  or  from  the  payment  of  indem 
nities  which  they  were  bound  to  make  to  France,  the  Senate  is  most  competent  to 
determine  how  far  such  an  appropriation  is  a  public  use  of  private  property,  within 
the  spirit  of  the  Constitution,  and  whether  equitable  considerations  do  not  require 
some  compensation  to  be  made  to  the  claimants." — Doc.  102,  page  7. 

Copy  of  a  letter  from  Ex-President  John  Adarns  to  James  H. 
Causten,  dated  Quincy,  May  9,  1823. 

"  I  have  received  your  letter  of  26th  April.  You  are  entirely  mistaken  in  supposing 
that  the  second  article  of  the  Convention  with  France  of  1800  was  stricken  out  at  my 
desire  or  information.  On  the  contrary,  I  was  desirous  of  retaining  it ;  so  much  so 
that  I  sent  a  message  to  the  Senate,  and  explicitly  told  them  it  would  have  been  been 
more  agreeable  to  my  inclination  to  have  ratified  the  Convention  as  it  stood. 

*  *  "To  expbun  all  the  mysteries  of  that  period  never  was,  and  never  will  be  in 
my  power.  It  would  require  volumes  to  give  a  simple  history  of  it.  All  I  can  say 
of  it  is,  there  was  war  between  St.  Dennis  and  St.  George.  Each  had  an  army  in 
America,  constantly  skirmishing  with  each  other,  and  both  of  them  constantly  stabbing 
me  with  lancets,  spikes,  and  spears.  My  sole  object  was  to  preserve  the  peace  and 
neutrality  of  the  country,  and  that,  1  thank  God,  I  obtained,  at  the  loss  of  my  power 
and  fame  with  both  sides." 


18 

Copy  of  a  letter  from  ex-Senator  William  C.  Preston  to  James 
H.  Causton,  dated  Columbia,  South  Carolina,  January  29,  1844: 

"I  have  this  moment  received  your  letter  of  the  2  Istinstant,  inquiring  of  me  con 
cerning  Judge  Marshall's  opinions  on  the  claims  for  French  spoliations  anterior  to 
1800. 

"  When  that  subject  was  under  consideration  in  the  Senate  some  years  since,  as  a 
member  of  the  committee  to  which  it  had  been  given  in  charge,  I  bestowed  no  little 
pains  in  the  investigation  of  it,  and,  as  1  believe  it  will  happen  to  everyone  that  does 
so,  I  became  thoroughly  satisfied  of  the  justness  of  the  claims.  While  they  were 
under  discussion  in  the  Senate  they  happened  to  be  the  subject  of  conversation  be 
tween  Mr.  Leigh,  Mr.  Calhoun  and  myself,  one  evening  *  in  our  mess  parlor,  when 
Judge  Marshall  stepped  in,  and  having  overheard  or  been  informed  of  the  subject  of 
the  conversation,  asked  to  share  in  it,  saying  that,  having  been  connected  with  the 
events  of  that  period,  and  conversant  with  the  circumstances  under  which  the  claims 
arose,  [he  was  one  of  the  Envoys  to  France  in  179*7,  and  Secretary  of  State  when  the 
convention  of  1800  was  finally  ratified,]  he  was,  from  his  own  knowledge,  satisfied 
that  there  was  the  strongest  obligation  on  the  Government  to  compensate  the  suffer 
ing  by  the  French  spoliations.  He  gave  a  succinct  statement  of  the  leading  facts, 
and  the  principles  of  law  applicable  to  them,  in  so  precise  and  lucid  a  way  that  it 
seemed  to  me  a  termination  of  the  argument  by  a  judicial  decision.  It  was  apparent 
from  his  manner  that  he  felt  an  interest  in  the  inculcation  of  his  opinion,  arising 
from  deep  conviction  of  its  truth.  I  most  heartily  desire  that  the  long  delayed  and 
very  inadequate  justice  now  proposed  to  these  unfortunate  claimants  will  be  made 
this  session." 

Extract  of  a  letter  from  ex-Secretary  of  State,  Timothy  Pick 
ering,  to  James  H.  Causteu,  dated  Salem,"  November  19,  1824, 
which,  after  stating  the  early  proceeding  seriatum,  concludes  as 
follows : 

"Thus  the  Government  bartered  the  just  claims  of  our  merchants  to  obtain  a  relin- 
quishment  of  the  French  claim  for  a  restoration  of  the  old  treaties,  especially  the 
burdensome  treaty  of  Alliance,  by  which  we  were  bound  to  guarantee  to  France  her 
West  India  territories  in  America.  In  this  view  of  the  case  it  would  seem  that  the 
merchants  have  an  equitable  claim  for  indemnity  from  the  United  States." 

Notwithstanding  the  great  length  of  the  recorded  proceedings 
in  the  Corps  Legislatif  at  Paris,  on  the  final  ratification  of  the 

*  The  visit  here  referred  to  took  place  on  the  evening  of  the  very  day  on  which  a  bill  for  the  relief  of 
the  French  spoliation  claimants  had  been  discussed  in  the  Senate  throughout  the  entire  day.  in  the 
presence  of  Chief  Justice  Marshall,  who  had,  to  the  surprise  of  the  whole  Senate,  spent  the  whole  days' 
sitting  in  attentively  listening  to  the  several  elaborate  speeches  on  said  bill,  more  particularly  on  Mr. 
Calhouu's  speech  in  opposition,  all  the  pros  and  cons  being  freely  canvassed. 

The  meeting  in  the  evening  and  the  conference  with  Judge  Marshall,  as  stated  in  Senator  Preston's 
letter,  wus  fully  confirmed  by  Mr.  Lambert,  late  Mayor  of  Richmond,  who  was  present  at  the  meeting, 
and  who  communicated  its  proceedings  to  the  writer  of  this  note  on  the  following  morning,  adding, 
however,  that  Judge  Marshall  stated  that  the  object  of  his  visit  was  to  correct  Mr.  Calhoun  as  to  the 
facts  set  forth  in  his  said  opposition  speech  ;  and  that  then  followed  the  lucid  explanation  of  the  Judge, 
as  stated  by  Mr.  Preston. 

Subsequently,  Senator  John  M.  Clayton  wrote  to  Senator  B.  W.  Leigh,  who  was  present  on  that  even 
ing,  but  was  then  at  Richmond,  requesting  him  to  state  his  recollection  of  what  took  place  at  said  meet 
ing,  and  in  answer  thereto,  Mr.  Leigh  replied,  viz  : 

"  *  *  *  I  have  then  to  state  that  the  late  Chief  Justice  Marshall  did.  in  a  conversation 
with  me  and  some  two  or  three  others,  while  a  bill  was  before  the  Senate  for  the  payment  of  the  claims 
for  French  spoliation  prior  to  18uO,  express  an  opinion,  distinctly  and  positively,  that  the  United  States 
ought  to  make  provision  for  the  payment  of  these  claims ;  and  the  opinion  made  the  more  impression  on 
my  mind  since  it  was  contrary  to  an  idea  which  I  had  taken  up  on  the  subject,  and  it  determined  me  to 
examiue  it  with  greater  care  and  discrimination  than  I  had  before  given  to  it.  You  may  make  what  use 
I  this  letter  you  please. 

"  The  President's  veto  of  this  claim  appeared  to  me  very  strange.  Is  a  President  authorized  to  veto 
every  bill  for  which  he  himself  would  not  vote  ?  It  he  is,  he  is  the  whole  Legislature  whenever  there  is 
not  a  majority  of  two-thirds  of  both  Houses  of  Congress.  B.  W.  LEIGH. 

"  To  the  Hon.  John  M.  Clayton." 


19 

convention  of  1800,  it  is  proper  to  give  some  notice  of  it  here, 
viz: 

"In  1792,  when  war  broke  out  between  France  and  England,  the  United  States 
found  themselves  embarrassed  between  their  engagements  towards  the  one,  and  the 
power  of  the  other.  Difficulties  sprang  up  as  to  the  interpretation  of  the  treaties  ; 
discussions  became  embittered  by  the  crimination  on  one  side  and  the  other,  which 
the  distance  and  difficulty  of  communication  did  not  permit  of  being  dissipated.  A 
treaty  of  Amity  and  Commerce,  concluded  during  these  circumstances,  between  the 
United  States  and  England,  was  regarded  by  France  as  a  proof  of  partiality  in  favor 
of  her  enemy.  The  commercial  agents  of  the  Republic  gave  rise  to  and  excited  some 
irritation  ;  the  commerce  of  the  United  States  was  disturbed  by  French  privateers  ; 
several  captures,  to  their  injury,  followed  ;  the  American  Congress  then  believed  itself 
at  liberty  to  declare  the  United  States  exonerated  from  the  treaties  which  united  them  to 
France;  they  broke  off  their  relations  with  her;  they  granted  letters  of  marque 
against  her  armed  vessels  in  the  colonies  ;  and  the  encounters  at  sea  between  the 
vessels  of  the  two  nations  soon  announced  that  the  reconciliation  should  be  hastened 
if  it  was  desired  that  it  should  not  become  very  difficult.  Such  was  the  state  of 
things  when  three  American  negotiators  arrived  at  Paris,  led  thither  by  the  desire 
and  the  hope  of  preventing  a  signal  rupture. 

"American  commerce  was  alleged  to  have  suffered  considerable  losses — the  nego 
tiators  demanded  indemnity  for  them. 

"  The  French  Government  had  also  to  allege  claims  for  her  commerce,  which  had 
suffered  for  a  long  time  ;  it  recognized  that  it  was  just  to  liquidate,  compensate'  and 
close,  if  it  were  possible,  the  indemnities  which  might  be  respectively  due  ;  but  it 
put  forth  as  a  condition  to  any  stipulation  on  this  subject,  that  the  former  treaties 
between  France  and  the  United  States  should  be  previously  recognized,  considering 
that,  indemnities  could  only  be  an  acknowledgment  of  uninterrupted  friendship  be 
tween  the  two  States ;  a  disavowal  of  all  the  violences  which  might  have  grown  out 
of  a  simple  misunderstanding;  a  sort  of  protest  against  everything  which  might  have 
announced  a  hostile  intention;  a  new  assurance  of  fidelity  to  the  old  Conventions; 
in  a  word,  considering  that  indemnities  could  be  only  the  execution  of  the  old  trea 
ties,  and  not  the  preliminary  of  a  new  one,  since  avowing  their  annihilation  would 
have  been  avowing  war,  and  imposing  on  that  one  of  the  two  nations  which  would 
have  to  pay  the  other  a  balance  of  indemnity,  the  shameful  obligation  of  purchasing 
peace. 

"  The  American  negotiators  considered  themselves  bound  by  the  act  of  Congress 
which  had  declared  the  treaties  null,  and  decided  that  it  was  impossible  that  they 
could  recognize  them.  It  consequently  became  necessary  to  adjourn  the  respective 
pretensions,  and  to  regulate  by  new  stipulations  the  relations  of  Amity  and  Com 
merce  which  the  negotiation  was  to  re-establish.  Such  has  been  the  object  of  the 
Convention  concluded  at  Paris  on  the  30th  of  September,  1800,  which  is  now  pre 
sented  to  the  Corps  Legislatif. 

*  "  Such  was  moreover  the  confidence  of  the  two  nations  in  the  formation 
of  the  treaty,  such  was  their  eagerness  for  a  prompt  reconciliation,  that  the  first 
stipulation  agreed  upon  between  the  negotiators  was  the  cessation  of  all  hostility, 
from  the  signature  even  of  the  Convention,  and  without  waiting  for  its  ratification  on 
the  part  of  either,  this  article  has  been  faithfully  executed  on  the  part  of  both.  The 
reservation  of  opening  ulterior  negotiations  relative  to  the  treaties  and  indemnities 
has  been  consigned  in  the  second  article,  of  which  it  is  the  sole  object.  But  the  fear 
of  awakening:  lively  discussions,  and  of  viewing  any  alteration  in  the  good  harmony 
which  ought  to  be  the  happy  result  of  the  other  stipulations,  has  caused  the  second 
article  to  be  suppressed  in  the  acts  of  ratification.  This  suppression  is  a  prudent  and 
amicable  renunciation  of  the  respective  pretensions  which  were  expressed  in  the 
article." 

The  above  exposition  was  made  by  citizen  Roderer,  who,  with 
Joseph  Bonaparte  and  C.  P.  Claret  Fleurieu  composed  the  Com 
mission  on  the  part  of  France,  to  confer  with  the  American  Com 
missioners,  Messrs.  Ellsworth,  Davie  and  Murray,  in  1800. 

And  at  the  same  session  of  the  Corps  Legislatif,  P.  A.  Adet  (late  French  Minister 
to  the  United  States,  in  1796)  made  the  following  Report  : 


20 

Ektract.  *  *  *  "In  consequence  of  this  bill  [the  Act  of  Congress  nullifying 
the  old  treaties]  the  American  Government  suspended  the  commercial  relations  of  the 
United  States  with  France,  and  gave  to  privateers  permission  to  attack  the  armed 
vessels  of  the  Republic.  The  national  frigates  were  ordered  to  seek  them  and  to  fight 
them.  A  French  frigate  and  sloop  of  war,  successively  and  unexpectedly  attacked 
by  the  Americans,  were  obliged  to  yield  to  force,  and  the  French  flag  (strange  versa 
tility  of  human  affairs)  was  dragged,  humiliated,  before  the  same  people  who,  a  little 
while  ago,  with  eager  shouts,  had  applauded  its  triumph. 

"  'Twas  getting  past  recovery.  War  would  have  broken  out  between  America  and 
France  if  the  Directory,  changing  its  system  and  following  the  counsel  of  prudence,, 
had  not  opposed  moderation  to  the  unmeasured  conduct  of  the  President  of  the  United 
States."  *  *  * 

There  is  another  French  authority  in  full  accordance  with  the 
above,  and  alike  worthy  of  confidence,  viz  :  Napolaon  Bonaparte, 
who  as  First  Consul  signed  the  Convention  of  September  80, 1800, 
but  subsequently  prescribed  and  ratified  it  with  the  second  article 
erased;  when  at  St.  Helena,  many  years  after  the  completion  of 
the  Convention,  in  dictating  to  General  Gourg  and  for  history, 
and  so  published,  as  the  events  of  his  eftnti^as  First  Consul  de. 
clared — 

"That  the  suppression  of  the««»WB*i»article1p  of  the  Convention  at  once  put  an  end 
to  the  privileges  which  France  has  possessedgy  the  treaties  of  17*78,  and  annulled  the 
just  claims  which  America  might  have  made  fur  injuries  done  in  time  of  peace." 

Immediately  after  the  final  ratification  of  said  Convention,  the 
owners  of  the  vessels  captured  by  the  French,  and  whose  claims 
were,  without  their  consent  or  knowledge,  bartered  to  France  for 
the  public  use,  demanded  indemnity  therefor  from  the  Govern 
ment  of  the  United  States  under  the  all-controlling  provisions  of 
our  Constitution  ;  to  their  memorials  to  Congress  for  relief,  the 
original  sufferers  being  long  since  dead,  other  memorials  of  the 
successors,  executors,  administrators,  and  heirs,  have  since  in 
creased  the  number  now  on  the  files  of  Congress  to- nearly  four 
thousand. 

The  first  object  of  these  memorials  has  not  been  regarded  with 
indifference  or  neglect  by  Congress. 

The  Senate,  by  resolution  of  March  5, 1834,  requested  the  Presi 
dent  to  lay  before  the  Senate  — 

"Copies  of  the  several  instructions  to  the  Ministers  of  the  United  States 
to  the  Government  of  France,  and  of  the  correspondence  between  the  said 
ministers  and  Government  having  reference  to  the  spoliations  committed  by  that 
power  on  the  commerce  of  the  United  States  anterior  to  the  30th  of  September,  1800; 
*  *  also,  how  far,  if  at  all,  the  claim  of  indemnity  from  the  Government  of  France, 
for  the  spoliations  aforesaid,  was  affected  by  the  Convention  entered  into  between 
the  United  States  and  France,  on  the  said  30th  of  September,  1800" — Doc.  102,  page 
102. 

This  resolution  was  carried  into  effect  by  President  John 
Qumcy  Adams,  who,  on  the  20th  of  May,  1826,  by  message  to  the 


21 


Senate,  presented  the  Report  of  the  Secretary  of  State,  Mr.  Clay, 
the  material  portion  of  which  is  set  forth  on  the  17th  page  of  this 
statement,  and  a  full  copy  will  be  found  at— Doc.  102,  page  5. 

The  mass  of  documents  thus  brought  to  light,  where  they  had 
slept  in  the  secret  archives  of  the  State  Department  undisturbed 
for  more  than  a  quarter  of  a  century— alike  wholly  unknown  to 
the  claimants  and  to  the  then  Congress,  at  once  opened  a  Hood  of 
light,  for  the  first  time,  on  the  subject  of  these  claims.  Since  then 
forty  reports  of  Committees  of  the  two  Houses  have  been  made, 
each  and  all  of  them  fully  in  favor  of  the  Memorialists,  accompanied 
each  with  a  bill  for  five  millions  of  dollars,  as  due  indemnity- 
being  a  forced  compromise.  The  last  report  by  Senator  Sumner  is 
of  distinguished  ability  and  wisdom,  from  the  Committee  of 
Foreign  Affairs,  on  the  4th  April,  1864,  with  a  bill  of  relief  also, 
to  the  extent  of  five  millions  of  dollars;  that  bill  to  this  day  has 
remained  on  the  calendar  of  the  Senate  unacted  upon,  solely  by 
reason  of  our  protracted  rebellion,  impeachment  of  President 
Johnson,  and  other  absorbing  public  matters  of  pressing  and  in 
dispensable  necessity;  the  bill  last  mentioned,  however,  Mr. 
Sumner's,  will  be  urged  to  completion,  and  no  doubt  successfully, 
at  the  approaching  session  on  the  4th  of  March  next. 

The  Senate  heretofore  voted  bills  so  reported  eight  times  and 
the  House  of  Representatives  twice.  But  neither  House,  when 
the  subject  was  brought  before  them,  ever  voted  against  either 
of  the  bills  so  reported,  as  they  were  found  irresistably  based  on 
the  facts  disclosed  by  the  correspondence  with  France,  before 
mentioned. 

The  question  will  naturally  arise,  and  perhaps,  as  will  be  stated    ^ 
here,  for  the  information  of  the  reader,  viz  :   Why  are  these  seve 
ral  bills  restricted  to  five  millions  of  dollars,  while  the  best  attain 
able  estimate  of  the  aggregate  principal  of  the  claims  range  some 
where  between  eight  and  thirteen  millions  ? 

The  only  answer  is,  that  it  is  aAaged-^oraproniise  prescribed 
by  Congress  ex  parte. 

And  although  the  claimants  never  asked  for  or  contemplated 
a  compromise,  yet  they  have  not  opposed  this  inadequate  sum, 
lest  it  might  further  delay  relief,  of  which  their  aged  suffering 
associates  were  in  great  need  ;  hence  their  humane  and  manly 
silence  on  that  point. 


22 

Nevertheless,  there  remains  another  view  of  the  subject  that 
should  not  be  passed  over. 

The  claimants  have  asked  for  indemnity  in  general  without 
specification  of  amount,  but  for  whatever  amount  should  be  found 
justly  due  them  ;  not  doubting  that  the  great  law  of  the  Consti 
tution  that  binds  all  parties,  would  be  faithfully  administered  to 
them,  "  nor  shall  private  property  be  taken  for  the  public  use 
without  just  compensation." 

Now,  no  one  will  pretend  that  this  forced  compromise  is  a  just 
compensation  ;  therefore,  neither  Congress  or  the  claimants  can 
morally  or  legally  be  bound  by  it.  And  on  the  other  hand,  Con 
gress  might  find  it  inconvenient  to  assume  the  entire  obligation 
of  the  principal  and  seventy  years  interest  during  the  present 
burden  of  taxation  and  great  public  debt. 

But  as  the  claims  can  be  paid  without  money  in  hand,  by  a 
simple  mode  that  would  satisfy  both  parties  and  harmonize  with  the 
constitutional  provision,  it  is  worthy,  perhaps,  of  consideration,  viz: 

Let  the  capital  of  the  claims,  or  capital  and  interest  be  ascer 
tained,  and  the  whole  covered  by  scrip  bearing  three  or  four  per 
cent,  per  annum,  and  redeemable  at  the  pleasure  of  the  Govern 
ment,  or  when  the  last  gun  has  been  fired. 

The  reader  will  please  exemplify  this  suggestion  according  to  his 
own  taste  or  judgment.  There  exists  no  authority  to  make  it,  but  it 
is  beleived  that  such  a  proposition,  if  made  by  Congress,  would 
be  acceptable  to  the  claimants. 

Between  the  years  1827  and  184G  twenty-two  reports  of  com 
mittees,  all  in  favor  of  the  claimants,  had  been  made  in  the  two 
Houses  of  Congress,  each  by  a  bill,  and  each  bill  for  five  million 
dollars  indemnity.  The  last  of  said  bills  was  a  Senate  bill,  and 
confirmed  by  the  House,  and  of  course  sent  to  the  President,  Mr. 
Polk,  who  returned  it  with  his  veto  on  the  10th  of  August,  1846, 
being  the  last  day,  and  near  the  last  hour  of  the  session,  and  when 
many  of  the  friends  of  the  bill  had  left  the  capital  and  the  city. 
On  the  veto  being  submitted  to  the  Senate,  on  the  question  "shall 
the  bill  pass?''  the  vote  was  27  yeas,  15  nays;  not  two  thirds,  so 
the  bill  was  lost.  One  additional  yea  would  have  produced  the 
required  two  thirds,  and  thus  passed  the  bill  into  a  law,  as  the 
27  and  15  votes — 42,  of  which  28  would  be  two-thirds.  The  large 
majority  of  yeas,  however,  shows  that  no  importance  was  given 
to  the  veto.  But  the  bill  was  lost. 


23 

tllQ   flrof    rM"lT7af£»     Vvill     «TTrtw   rrf\4-f\f\A 


With  respect  to  the  veto,  being  the  first  private  bill  ever  vetoed, 
but  little  need  be  said,  since  the  first  paragraph  of  the  message 
discloses  that  the  President  knew  not  of  or  disregarded  the  merits 
of  the  claims,  he  says : 

"  In  attempting  to  give  to  the  bill  the  careful  examination  it  requires,  difficulties 
presented  themselves  in  the  outset  from  the  remoteness  of  the  period  to  which  the 
claims  belong,  the  complicated  nature  of  the  transactions  in  which  they  originated, 
and  the  protracted  negotiations  to  which  they  led  between  France  and  the^United 
States.  The  short  time  intervening  between  the  passage  of  the  bill  by  Congress  and 
the  approaching  close  of  the  session,  as  well  as  the  pressure  of  other  official  duties 
have  not  permitted  me  to  extend  my  examination  of  the  subject  into  its  minute  de 
tails. 

The  message  proceeds— that  his  predecessors  had  never  recognized  these  claims  • 
that  he  doubted  their  validity  ;  that  nothing  was  obtained  for  the  claimants  by  nego 
tiation,  because  (being  payable  in  land  scrip)  it  would  effect  the  Treasury  receipts 
from  that  source,  and  only  benefit  speculators  ;  that  it  is  only  a  partial  payment  of  a 
much  larger  sum,  and  repudiation  of  a  part  thereof,  which  would  be  unjust,  not  pay 
able  in  the  currency  known  to  the  Constitution,  but  in  a  depreciated  medium,  not  to 
full  amount,  there  is  no  surplus  in  the  Treasury,  the  public  debt,  the  war  with  Mexico 
and  finally,  that  his  objections  are  to  the  u  inexpediency  alone." 

Hence  he  will  allow  nothing,  nor  one  word  of  sympathy  for 
the  losses  of  the  suffering  claimants,  his  fellow  citizens. 

Disregarding  the  veto  as  wholly  untenable,  at  the  opening  of 
the  following  session  of  Congress,  on  the  17th  of  December,  1846, 
being  only  four  months  after  the  date  of  the  veto,  the  Senate  ap 
pointed  a  committee  to  resume  the  consideration  of  the  French 
spoliation  claims,  who  reported  the  old  bill  on  the  10th  February, 
1847,  for  five  million  dollars,  payable  in  five  per  cent.  United 
States  stock. 

Another  like  committee  of  the  House  reported  a  like  bill  on  the 
4th  January,  1848. 

Another  like  committee  of  the  Senate  reported  a  like  bill  on  the 
5th  February,  1848. 

Another  like  committee  of  the  House  reported  a  like  bill  on  the 
14th  June,  1850. 

Another  like  committee  of  the  Senate  reported  a  like  bill  on  the 
24th  January,  1851. 

Another  like  committee  of  the  Senate  reported  a  like  bill  on  the 
14th  January,  1852. 

Another  like  committee  of  the  Senate  reported  a  like  bill  on  the 
17th  January,  1854.  This  bill  was  voted  by  the  Senate  by  yeas  26, 
nays  17. 

Another  committee  of  the  House  reported  a  like  bill  on  the  4th 
January,  1855.  This  bill  was  voted  by  the  House  by  yeas  111, 
nays  77.  It  was  vetoed  by  President  Pierce  on  17th  February, 


24 

1855  ;  and  on  the  question  "  shall  the  bill  pass  ?"  the  vote  was — 
yeas  113,  nays  86;  not  two  thirds,  so  the  bill  was  lost. 

This  veto  message,  like  that  of  President  Polk,  is  entitled  to 
very  little  respect,  since  it  also  abounds  with  errors,  trifles,  and 
even  unfounded  facts  that  are  wholly  inexcusable  ;  a  due  respect 
for  his  office,  however,  is  not  to  be  overlooked. 

The  writer  of  this  exposition  is  informed  by  high  authority  that 
President  Pierce  was  not  the  writer  of  said  message,  that  it  was 
written  by  an  officer,  then  of  high  rank  arid  now  of  the  lowest 
grade  of  mankind,  and  yet  living.  And  by  another  authority, 
no  less  elevated,  that  President  Pierce  himself  acknowledged  to 
him  that  he  had  made  a  mistake  in  making  that  message — but 
these  are  not  now  material,  as  the  message  itself  is  under  con 
sideration. 

As  it  would  require  a  volume  to  explain  the  omissions  and  com 
missions  of  errors,  to  say  nothing  of  the  special  pleadings,  pre 
sumptions  and  assumptions  set  forth  in  the  message,  two  or  three 
only  of  the  prominent  points  need  be  remarked  on.  Before  do 
ing  so,  however,  it  is  proper  to  state  in  advance,  that  the  writer 
of  the  message  has,  throughout  its  whole  scope,  committed  the 
not  unusual  error  in  those  unfamiliar  with  the  subject,  but  in  this 
case  a  blunder  so  vital  as  to  disqualify  the  maker  from  all  confi 
dence,  viz :  of  confounding  torts  with  debts.  The  torts  being 
captures  and  condemnations,  forcible  seizure  of  property,  &c., 
and  were  confined  to  the  second  article  of  the  Convention  of 
1800  ;  while  the  debts  were  exclusively  confined  to  the  Conven 
tion  of  1803,  that  is  to  say,  for  contracts,  supplies,  and  such  cap 
tures  (some  fifteen  or  twenty)  as  the  French  tribunals  had  ordered 
to  be  restored,  but  could  not  be  restored  in  kind  as  they  had 
been  taken  to  the  public  use  by  the  French  Government,  and 
hence  their  value  was  held  to  be  debts. 

Besides,  it  would  be  absurd  to  say,  that  the  fifteen  hundred 
vessels  captured  and  condemned,  and  their  value  bartered  to 
France  in  1800,  could,  by  any  possibility,  be  regarded  as  existing 
claims  in  1803. 

That  the  message  has  fallen  into  such  absurdity  is  easily  es 
tablished—bearing  in  mind  that  the  whole  Covention  of  1803  is 
confined  to  debts  ;  the  fifth  article  thereof  contains  the  following, 
viz  :  u  The  'said  fifth  article  does  not  comprehend  prizes  whose  con 
demnation  has  been  or  shall  be  confirmed" 


25 
The  message  also  states — 

"If  new  facts,  not  known  or  not  accessible  during  the  administration  of  Mr.  Jeffer 
son,  Mr.  Madison,  or  Mr.  Monroe,  had  since  been  brought  to  light,  or  new  sources  of 
information  discovered,  this  would  greatly  relieve  the  subject  of  embarrassment. 
But  nothing  of  this  nature  has  occurred." 

It  is  quite  evident  that  the  writer  of  the  message  had  not  seen 
the  volume  of  correspondence  between  the  United  States  and 
France,  published  by  order  of  the  Senate,  of  840  pages  ;  the  con 
tents  of  which  prior  to  1826,  had  slept  in  the  secret  archives  of  the 
State  Department  for  more  than  a  quarter  of  a  century,  being 
the  only  reliable  and  official  history  of  these  claims,  yet  extant, 
as  to  which  there  is  no  hazard  in  saying  that  neither  Mr.  Jeffer 
son,  Mr.  Madiaon,  or  Mr.  Monroe  never  saw,  or  at  least,  since  they 
were  deposited  there.  And  without  a  close  examination  of  this 
mass  of  documents,  numbered  102,  no  man  can  safely  or  honestly 
touch  or  comprehend  the  subject. 

Without  doubt,  Mr.  Jefferson,  Mr.  Madison  and  Mr.  Monroe 
well  knew  that,  immediately  after  the  fioal  ratification  of  the  Con 
vention  with  France,  of  30th  September,  1800,  that,  be  it  remem 
bered,  was  three  years  before  the  Convention  of  1803,  existed, 
the  House  of  Representatives  in  Congress,  of  its  own  conscious 
ness  and  impulse,  proposed  an  assumption  arid  payment  of  the 
identical  claims  for  French  Spoliations  now  under  consideration  ; 
and  without  the  slightest  intimation  that  France  was  in  any 
manner  or  degree  responsible  for  them,  as  the  following  ex 
tracts  from  the  House  Journal  of  their  proceedings  will  clearly 
establish. 

On  the  31st  of  January,  1803,  the  Journal  states  : 

'  "Resolved,  That  provision  ought  to  be  made,  by  law,  to  indemnify  the  citizens  of 
the  United  States,  who,  in  carrying  on  a  lawful  trade  to  foreign  ports,  suffered  losses 
by  the  seizure  of  their  property  made  by  unauthorized  French  cruisers,  or  by  any 
French  cruiser,  without  sufficient  cause,  in  violation  of  the  rights  of  American  com 
merce,  during  the  late  war  between  Great  Britain  and  the  French  Republic,  and 
whose  claims  to  indemnify  against  the  said  Republic  were  renounced  by  the  United 
States,  by  their  acceptance  of  the  ratification  of  the  treaty  lately  made  with  France." 

It  is  recorded  in  the  House  Journal  of  the  26th  December,  1806, 
that  the  memorials  of  sundry  merchants,  owners  of  vessels  cap 
tured  by  the  French,  were  referred  to  a  committee,  consisting  of 
Mr.  Eppes,  Mr.  Clinton,  Mr.  Tallmage,  Mr.  Cutts,  Mr.  Dickson, 
Mr.  Blount,  Mr.  Fenley  and  Mr.  Tenny ;  that  they  do  examine 
the  matters  thereof,  and  report  the  same,  with  their  opinions 


26 

thereupon,  to  the  House.     And,  on  the  17th  February,  1807,  Mr. 
Marion  reported  as  follows : 

*  *  *  "From  a  mature  consideration  of  the  subject,  and  from  the  best  judgment 
your  Committee  have  been  able  to  form  on  the  case,  they  are  of  opinion  that  this 
Government,  by^xpfoooing  .the  second  article  of  our  Convention  with  France  of  the 
30th  September,  1800,  became  bound  to  indemnify  the  memorialists  for  their  just 
claims,  which  they  otherwise  would  rightfully  have  had  on  the  Government  of  France, 
for  the  spoliations  committed  on  their  commerce  by  the  illegal  captures  by  the  cruisers 
and  other  armed  vessels  of  that  Power,  in  violation  of  the  law  of  nations,  and  in 
breach  of  treaties  then  existing  between  the  two  nations;  which  claims  they  were, by 
the  rejection  of  the  said  article  of  the  Convention,  forever  barred  from  referring  to 
the  Government  of  France  for  compensation." 

And  on  the  next  following  day  the  journal  states: 

"  A  motion  was  n  ade  and  seconded  that  the  House  proceed  to  take  into  consider 
ation  a  motion  of  the  31st  ultimo,  for  indemnifying  the  citizens  of  the  United  States, 
who,  in  carrying  on  a  lawful  commerce  to  foreign  ports,  have  suffered  losses  by  the 
seizure  of  their  property  made  by  unauthorized  French  cruisers,  or  by  any  French 
cruiser,  without  sufficient  cause." 

It  was  resolved  in  the  affirmative — yeas  65 — nays  26. 

The  above  overture  was  subsequently  lost  on  account  of  the 
following  political  considerations  alone,  viz :  Mr.  Jefferson  had 
been  recently  elected  President  on  his  pledge  to  repeal  the  direct 
taxes  which  his  predecessor  had  caused  to  be  laid ;  his  party  in 
Congress,  being  predominant,  held  to  that  pledge  and  did  repeal 
the  taxes ;  whereupon  the  said  overture  and  the  means  to  carry 
into  effect  fell  together.  But  the  spirit  of  just  relief  remains  to 
this  day. 

If  that  overture  had  produced  an  appropriation  of  one  hundred 
and  fourteen  thousand  dollars  it  would,  at  six  per  cent,  compound 
interest  annually,  have  produced,  within  the  intervening  sixty-five 
years,  a  sum  exceeding  five  millions,  as  now  proposed. 

The  message  continues  thus — 

"  As  to  claims  of  citizens  of  the  United  States  against  France,  which  had  been  the 
subject  of  controversy  between  the  two  countries  prior  to  the  signature  of  the  Conven 
tion  of  1800,  and  the  further  consideration  of  which  was  reserved  for  a  more  conve 
nient  time,  for  these  claims,  and  for  these  only,  provision  was  made  in  the  treaties  of 
1803,  all  other  claims  being  expressly  excluded  by  them  from  their  scope  and  pur 
view." 

This  is  so  gross  and  signally  untrue  that  there  is  no  alternative 
left  from  deliberate  design  to  mislead.  It  does  not  suffice  to  say 
that  this  declaration  is  wholly  untrue,  because  it  is  directly  the 
reverse  of  the  fact.  So  far  from  the  exclusive  debt  convention  of 
1803  containing  any  provision  for  the  relief  of  our  condemned 
fifteen  hundred  vessels,  they  were  expressly  and  emphatically  ex 
cluded  from  it  in  terms  that  no  man  can  misunderstand,  viz : 


27 

Article  5  of  convention  of  1803.  "The  said  fifth  article  does  not 
comprehend  prizes  whose  condemnation  has  been  or  shall  be  confirmed." 
The  celebrated  Talleyrand  would  have  denounced  such  a  bold 
blunder  as  worse  than  a  crime. 

A  still  further  blunder  was  made  in  declaring  that  these  claims 
were  paid ;  which  is  at  once  an  admission  that  they  ought  to 
have  been  paid,  and,  as  it  is  now  shown,  that  they  never  were 
paid,  the  logical  conclusion  follows  that  they  ought  now  to  be 
paid. 

The  only  portion  of  the  message  that  may  be  assented  to  de 
clares  "that  France  has  honorably  discharged  herself  of  all  obli 
gation  in  the  premises  towards  the  United  States."  This  is  true; 
but  that  is  not  the  question.  The  question  at  issue  is,  Has  the 
United  States  equally  and  honorably  discharged  themselves  from 
the  obligations  due  to  their  own  citizens  ? 

But  returning  to  the  proceedings  of  Congress — 

In  utter  disregard  of  both  vetoes,  the  House  appointed  a  committee  on  the  claims, 
who  reported  the  old  bill  on  the  3d  March,  1857. 

Another  committee  was  appointed  by  the  Senate,  who  reported  the  old  bill  on  the 
4th  March,  1858. 

This  bill  was  voted — yeas  26,  nays  20. 

Another  committee  was  appointed  by  the  House,  who  reported  the  old  bill  on  the 
29th  March,  1860. 

Another  committee  was  appointed  by  the  Senate,  who  reported  the  old  bill  June 
11,  1860. 

Another  committee  was  appointed  by  the  Senate,  who  reported  January  13,  1862, 
and  the  same  each  following  session  down  and  ending  1871,  the  subject  being  ren 
dered  inoperative  during  the  rebellion  and  impeachment  of  President  Johnson. 

This  last  bill  is  now  pending  in  the  Senate.  It  provides  for  a 
Board  of  Commissioners  to  audit  the  claims,  whose  awards  shall 
be  paid  by  a  pro  rata  of  five  million  dollars  as  full  satisfaction  for 
all  the  claims.  Senator  Sumner,  as  chairman  of  the  Committee 
on  Foreign  Affairs,  who  reported  it,  accompanied  by  a  report  in 
extenso  from  his  own  gifted  pen,  which  every  person  desirous  of 
a  clear,  full  and  intelligent  knowledge  of  the  subject,  should  not 
fail  to  read,  and  with  full  confidence  of  its  fidelity  in  every  re 
spect,  over  the  whole  subject. 

Not  only  has  Congress  thus  perseveringly  favored  the  just 
claims  of  the  memorialists,  but  the  Legislatures  of  the  States  of 
New  York,  Ohio,  Louisiana,  Massachusetts,  Maine,  Connecticut, 
Delaware,  Rhode  Island,  Maryland,  Alabama,  Pennsylvania, 
New  Hampshire,  Virginia  (by  House  of  Delegates)  and  Arkansas 
no  less  earnestly  and  perseveringly  maintained  these  just  claims, 


28 

by  instructing  their  Senators  and  requesting  their  Representatives 
in  Congress  to  aid  and  support  the  bills  hereinbefore  mentioned; 
and  several  of  said  States  have  repeated  said  instructions  again 
and  again. 

A  single  remark  may  be  indulged  here,  on  the  point  stated  in 
the  last  message,  viz :  that  these  claims  have  been  paid. 

That  throughout  the  thorough  discussions  had  on  them  by  Con 
gress  within  the  past  half  century,  by  forty  different  committees 
of  the  two  Houses,  and  by  a  like  number  of  speeches  pro  and  con 
by  the  brightest  intellects,  and  by  the  Legislatures  of  fourteen 
States,  yet  not  one  of  this  mass  of  respectable  and  reliable  per 
sons,  or  any  other  reliable  person  in  private  life,  has  had  the  bold 
ness,  the  audacity  to  say  that  these  claims  have  been  paid. 

It  is  no  less  due  to  the  memory  of  President  Pierce  to  add  the 
full  belief  that  that  declaration,  and  other  leading  points  in  his 
message,  was  interpolated  there  by  an  unworthy  hand,  and  thus 
imposed  on  the  President. 

The  veto  power  has  been  twice  exercised  on  bills  passed  by 
both  Houses  of  Congress  in  this  case;  that  of  President  Polk 
was,  as  is  believed,  the  first  veto  ever  made  by  any  President  on 
a  private  bill;  and  he  frankly  admits  therein  that  it  is  based  on 
"inexpediency  alone."  And,  with  equal  frankness,  President 
Pierce  declares  that  the  bill  before  him  a  involved  no  violation  of 
the  Constitution." 

It  may,  therefore,  with  propriety,  be  asked  why  the  terrific 
veto  power  should  have  been  applied  against  said  bills? 

There  has  been  much  less  discussion  had — but  no  reliable  con 
clusion — on  the  veto  power  than  its  great  importance  justly  de 
mands;  indeed,  it  is  still  an  open  question,  and  certainly  a  very 
dangerous  one,  as  it  is  a  death  blow  to  any  case.  It  carries 
with  it  all  the  influence  of  the  President  into  the  two  Houses  of 
Congress,  and,  as  the  majority  of  the  Congress  is  usually  if  not 
always  in  harmony  with  the  President,  so  his  veto  meets  a  ready 
confirmation  by  his  political  friends — it  overrules  the  great  funda 
mental  principle,  that  the  majority  shall  decide  ordinary  questions 
of  fact,  and  substitutes  a  two-thirds  as  overruling  it.  And  it  is 
thus  exercised  without,  or  with  imperfect  knowledge  of  the  subject 
matter  of  a  bill,  as  is  fully  admitted  in  both  these  instances — that 
it  is  utterly  impossible  for  the  President  to  fairly  judge  of  the  real 
merit  of  any  such  bill  by  an  imperfect  examination  of  its  details. 


29 

It  is  therefore  ex  parte  and  inopportune,  though  it  kills  instantly. 
Who  ever  heard  of  such  a  veto  being  overruled  by  Congress? 
No  despot  on  earth  ever  exercised  a  higher  dictatorial  arbitrary 
power. 

Nevertheless,  the  power  must  of  necessity  exist,  and  properly 
in  the  hands  of  the  President  for  the  sacred  indispensable  pur. 
pose,  and  for  no  other,  as  a  shield  to  defend  the  Constitution.  Its 
abuse,  therefore,  is  alone  complained  of.  Perhaps  the  best  au 
thority  extant  on  the  veto  power  is  that  of  Mr.  Jefferson,  whose 
whole  early  efforts  and  profound  judgment  in  framing  our  Govern 
ment,  commands  our  highest  respect :  he  says  : 

"  The  negative  of  the  President  is  the  shield  provided  by  the  Constitution  to  pro 
tect  against  the  invasion  of  the  Legislature,  1st,  the  rights  of  the  Executive ;  2d,  of 
the  Judiciary;  3d,  of  the  States  and  State  Legislatures.  *  *  *  It  must  be  added, 
however,  that  unless  the  Presidents  mend,  on  a  view  of  every  thing  which  is  urged 
for  and  against  a  bill  is  tolerably  clear  that  it  is  unauthorized  by  the  Constitution, 
[by  section  8  of  the  1st  article  of  the  Constitution,  Congress  shall  have  power  "to  pay 
the,  debts"  of  the  nation,']  if  the  pro  and  con  hang  so  even  as  to  balance  his  judg 
ment,  a  just  respect  for  the  wisdom  of  the  Legislature  would  naturally  decide  the 
balance  in  favor  of  their  opinion. 

"  It  is  chiefly  in  cases  where  they  are  clearly  misled  by  error,  ambition,  or  interest, 
that  the  Constitution  has  placed  a  check  in  the  negative  of  the  President." — Jeffer 
son's  Works,  Vol.  4,  p.  527. 

The  two  vetoes  made  in  this  case,  were  not  only  groundless, 
but,  with  all  their  gross  imperfection,  were  ungraciously  thrown 
back  into  the  faces  of  the  more  intelligent  Legislatures  that  had 
voted  the  bills  after  forty  consecutive  years  of  examination.  And 
the  strangest  thing  of  all  is,  that  the  Legislatures  did  not  instantly 
resent  the  insult,  and  thereby  defend  the  Constitution. 

After  all  that  has  been  said  both  herein  and  elsewhere,  both 
pro  and  con,  the  real  merits  of  the  case,  when  stripped  bare  of 
all  extraneous  appendages,  lays  in  a  nut-shell,  viz: 

The  claimants  allege,  to  use  the  words  of  both  Governments, 
that  they  were  robbed  of  their  property  by  the  French  ;  and  that, 
in  seeking  for  their  stolen  property,  they  have  traced  it  into  the 
secret  archives  of  our  State  Department ;  and  they  now  ask  of 
Congress  to  restore  it  to  them.  Thus,  the  whole  question  at  issue 
is,  Shall  that  be  done? 

JAMES  H.  CAUSTEN, 

in  behalf  of  the  Claimants. 

WASHINGTON,  D.  C.,  February  17,  1871. 


14  DAY  USE 

RETURN  TO  DESK  FROM  WHICH  BORROWED 

LOAN   DEPT. 

This  book  is  due  on  the  last  date  stamped  below,  or 

on  the  date  to  which  renewed. 
Renewed  books  are  subject  to  immediate  recall. 


*      30ottv56FH 

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OCT  3  1  1953 

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DEC  1  1  1956 

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OCT  1^1960 

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r  -n  Toi    inn     c'cc                                       General  Library 
^.liiUSS?1.59                               Urfm^of&lilbnd. 

•         Gaylamount 
''  Pamphlet 

Binder 
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Stockton,  Calif. 
T.  M.  Reg.  U.S.  Pat.  Off. 


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